Emergency Guardianship: When is it Appropriate?
By Alissa B. Gorman
McAndrews Law Offices, P.C.
Guardianship is necessary if an adult individual lacks capacity to make and communicate his own decisions, did not sign a Power of Attorney during his lifetime, and needs a person to make medical decisions and assist with financial transactions on his behalf. If an individual signed a Power of Attorney during his lifetime, then guardianship is typically not necessary, as the agent would be able to make medical and financial decisions during the principal’s incapacity. Some individuals, even if they are incapacitated and without a Power of Attorney, are able to function in the community without a guardian due to the availability of supportive family members and caregivers.
When an interested party decides to file for guardianship, it could take several months to complete the guardianship process, as many county Orphans’ Courts have high case loads. There are, unfortunately, instances where an alleged incapacitated person is not able to wait several months to have a guardian appointed, and requires guardianship services on an emergency basis. Pennsylvania law provides that when clear and convincing evidence demonstrates that the alleged incapacitated person appears to lack capacity, is in need of a guardian, and a failure to make such appointment will result in irreparable harm to the person or estate of the alleged incapacitated person, then an emergency guardianship is appropriate. 20 Pa. Code §5513. Upon filing the petition for emergency guardianship with the Orphans’ Court, a hearing is generally set to take place one to two days later. Many of the procedural requirements necessary for a regular guardianship are dispensed with due to the emergency nature of the situation. For instance, it is not necessary to give 20 days notice to the alleged incapacitated person and the members of his family; however, a citation must be served on alleged incapacitated person and a reasonable attempt to provide notice to his family members must be made. Medical testimony must be provided at the hearing, along with the appearance and testimony of the proposed guardian.
The appointment of an emergency guardian is temporary, as the order is only valid for 72 hours, with the possibility of extending the order if the emergency is still continuing. If the emergency continues after the 72 hour period, then the order appointing the guardian of the person may be extended an additional 20 days from the expiration of the initial order and an appointment for the guardian of the estate may extend for 30 days. After the expiration of the emergency order, a full guardianship hearing must take place to grant a permanent guardian of the person and/or estate.
Emergency guardianship is only to be sought in limited circumstances – usually when the individual’s health is at risk or an immediate decision must be made regarding the incapacitated person’s health or estate. Even if the alleged incapacitated person appointed an agent under a Power of Attorney to act on his behalf, emergency guardianship may be necessary if the agent is not fulfilling his duties, or if it is alleged that the agent is stealing assets of the incapacitated person and it is necessary to revoke the agent’s authority and appoint a guardian in place of the agent. Seeking emergency guardianship only to pay an individual’s bills typically does not rise to the standard of irreparable harm since creditors are willing to defer payment for several months.
The temporary nature of emergency guardianship makes it appropriate only in the most immediate of situations and when irreparable harm could be caused to the medical condition or estate of the incapacitated person. Should you wish to learn more about guardianships, please feel free to contact our office.